Written By Milos Barutciski, David Bursey, Sharon G.K. Singh and Anna Ren
With the New Democratic Party (NDP) forming British Columbia's next government, lobbying regulation in British Columbia is about to change. The 2017 Confidence and Supply Agreement between the B.C. Green Party Caucus and the B.C. NDP Caucus, which gave the NDP the votes to form government, refers to lobbying reform as a core policy initiative.
The expected changes to the Lobbyists Registration Act (the Act) will affect many stakeholders:
- Businesses and other organisations who employ or retain lobbyists must exercise enhanced due diligence and oversight to ensure their lobbyists comply, and to minimize legal and reputational risk for their organisations.
- 770 In-house lobbyists and 288 consultant lobbyist registered as active lobbyists with the B.C. Office of the Registrar of Lobbyists (ORL), must review their registration practices to ensure that they comply with changes to the Act.
- The public and news media may have access to a more robust registry that shows who is lobbying which public office holder, about what, and when.
Similar to other provincial and federal lobbying regulation acts, the Act promotes transparency by regulating lobbyists and requiring lobbyists to disclose in a public registry the government departments or agencies and the subject matter of their lobbying.
Lobbying is defined as communicating with a public office holder, for payment, in an attempt to influence outcomes of matters under the purview of the office holder. Public office holders include Members of the Legislative Assembly, government employees or appointees, and employees of government corporations.
The Act regulates both consultant and in-house lobbyists.
- Consultant lobbyists are those who have a paid “undertaking” to lobby on behalf of a client. Typically, these are consulting firms that companies hire for government relations work.
- In-house lobbyists are paid employees of businesses and other organisations who, among their duties, lobby on behalf of their organisations.
As Jay Fedorak, Deputy Registrar with the ORL, has noted, the Act "merely provides for a requirement that lobbyists register. We don't have the authority to look into any of their activities with respect to their relationships with public office holders, we don't regulate a code of conduct like many other jurisdictions.”
The NDP and the Greens have agreed that legislation will be introduced in the first sitting of the next session of the B.C. Legislative Assembly (September 2017) to:
- institute a multi-year prohibition on lobbying by former senior public office holders;
- increase penalties for violations of the Act; and,
- initiate a comprehensive review of the Act, including the ORL's mandate, to ensure that the "democratic institutions and the interests of British Columbians are adequately protected from the influence of special interests."
Much of the work on the potential reforms has already been undertaken. Over the past five years, the ORL has engaged with stakeholders, and issued several recommendations to improve the Act. These recommendations were captured in two ORL reports:
- The January 2013 Lobbying in British Columbia: The Way Forward which recommended 13 changes to the Act or lobbying regulation (the First Report).
- The November 2013 Recommendations for Changes to the Lobbyists Registration Act, which consulted stakeholders on first report's recommendation to narrow the suggested 13 recommendations (the Second Report).
To date, many of the substantial changes have not been implemented.
The ORL's previous recommendations included:
- Adopting a lobbyist code of conduct. (First Report)
- Harmonizing the registration requirement discrepancy between in-house and consultant lobbyists by eliminating the exemption from registration for in-house lobbyists if their employer’s lobbying efforts do not exceed 100 hours annually. (First and Second Reports)
- Requiring lobbyists to register actual lobbying within a certain period rather than registering their expected lobbying. (First and Second Reports)
- Requiring a 12-month ban on former public office holders from lobbying the agency where they worked during the last 12 months of employment as public officials and from lobbying on matters they engaged in during the last 12 months of their employment as public officials. (First and Second Reports)
- Requiring lobbyists to declare in their registration, whether they, their client or their employer have made a political contribution reportable under the Election Act to the cabinet minister or Member of the Legislative Assembly they are lobbying. (First Report)
- Requiring lobbyists to detail in their registrations any person or organization, other than the client or employer, that, to the lobbyist's knowledge, is a major funding source for the lobbying activities or has a direct interest in the outcome of the lobbyists' activities. (First and Second Reports)
Lobbying has long been part of public policy debates and decision-making. It generally serves an important purpose by allowing stakeholders to communicate their concerns to public officials. Lobbyist registration laws impose a measure of transparency on lobbyists and their clients, thereby mitigating the risk of improper or secret influence-peddling and other misconduct. However, recent B.C. experience with political donation issues suggests that lobbying still suffers from negative public perception. This negative perception undermines public confidence in government and casts suspicion on legitimate communications between public officials and stakeholders.
The Act's reform is long overdue. The current regime's practicality, clarity and effect can be greatly improved. The ORL, perhaps as a sign of frustration, has penalized trivial non-compliance while seeking more substantive reform. For example, the ORL has often penalized individuals for being too transparent when these individuals registered out of an abundance of caution.
We expect that many of the ORL’s recommendations will be adopted as part of the B.C. government's proposed lobbying reform. This reform will better align B.C.'s lobbying regulation with other jurisdictions around Canada and enhance transparency in the current process.